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Declaratory legislation: Towards a genealogy of neoliberal legalism
DOI link for Declaratory legislation: Towards a genealogy of neoliberal legalism
Declaratory legislation: Towards a genealogy of neoliberal legalism book
Declaratory legislation: Towards a genealogy of neoliberal legalism
DOI link for Declaratory legislation: Towards a genealogy of neoliberal legalism
Declaratory legislation: Towards a genealogy of neoliberal legalism book
ABSTRACT
In a famous speech at the House of Commons in 1947, Winston Churchill is reputed to have said, ‘Democracy is the worst form of government, except for all those other forms that have been tried from time to time.’ In this way, he found a memorable formulation for the widespread view of liberal legislation as a theory about the melancholy second best. Societies ought to be governed by laws that reflect the ‘will of the people’. But human will is weak and manipulable. It is lead by passions that are altogether fickle and ‘subjective’. As amateur psychologists, liberal philosophers and professional jurists, we have learned to juxtapose our ‘will’ with the firm objectivity of ‘knowledge’ – one matter of cunning desire; the other of reason and truth. Social life, we assume, including law is both about reason (knowledge) and will, about ‘ratio and voluntas’, knowledge and politics.1 Churchill’s formulation, however, points to awareness that the forms of knowledge so far available to assist in the government of society had either not operated well or had ended up in tragedy. Therefore, because of the absence of true social knowledge with directive power, we have had to reconcile ourselves with being ruled by ‘will’ (preferably by parliamentary will). ‘Knowledge’ and its accompanying ‘reason’ would still have a secondary role as its technical instruments. But they cannot sit on the driver’s seat. Because we cannot be ruled by scientists we must accept being ruled by politicians. Instead of being based on scientific theorems, our laws emerge as the mundane outcomes of the legislative will.